Updated, Tuesday 4:16 p.m.
Occupy Wall Street moved to the Supreme Court on Tuesday, with a tiny but very vocal group of protestors reeling off Carlin's famous “Seven Words You Can Never Say on Television."
The Court on Tuesday was hearing oral arguments for and against the Federal Communications Commission's tougher enforcement protocol announced in 2004 in reaction to separate instances of foul language and nudity on both Fox and ABC television networks.
About half a dozen protestors were in front of the court, yelling slogans like: "You can kill people half a world away, but you can't say 'fuck.'"
The protest provided a bizarre sideshow, while inside the justices wrestled with whether the FCC has the constitutional right to enforce rules prohibiting obscene language and nudity on broadcast television and radio.
The case arrives nearly a decade after Cher first dropped an “F-bomb” at the Fox-televised Billboard Awards in 2002, followed by Nicole Richie reciting a selection of naughty words on air a year later.
Also in the picture are actress Charlotte Ross’ buttocks, which appeared in a 2003 “NYPD Blue” episode. The FCC fined dozens of ABC affiliates $27,500 each — totaling more than $1 million — for broadcasting the bare backside to the public.
In that decade, different aspects of both the Fox and ABC matters have traveled up and down the court-system food chain.
The Supreme Court court upheld the FCC's right to impose fines two years ago but did not address whether the fines violate free speech protections. The U.S. Court of Appeals for the Second Circuit reversed that decision, saying it was unconstitutionally vague. Both Fox Television and ABC maintain that the FCC rules are so vaguely written they constitute a violation of the First Amendment. The Supreme Court agreed last summer to combine the issues in both the Fox and ABC cases in order to render a final judgment on the question of constitutionality as it applies to free speech.
And that is the issue it is hearing now.
U.S. Solicitor General Donald B. Verrilli, Jr. argued that it was not “futile” to maintain the FCC’s indecency rules because a “safe haven is important, especially in the new environment.”Justice Antonin Scalia and Chief Justice John Roberts argued that it was reasonable in this universe of cable and satellite television, where anything goes, that there should be some sort of safe haven. And since broadcasters are granted a license by the government, it's not too much to ask them to adhere to certain rules, they said.
Seth Waxman, representing ABC, pointed to the “starkly inconsistent manner” in which the FCC enforced the indecency rules. Ross’s buttocks are off limits, while much more nudity in the film “Catch-22” is allowed, Waxman said, calling the inconsistency “constitutionally intolerable.”
Roberts said it seemed reasonable that the FCC could take context into account when differentiating between a lewd remark from Paris Hilton and those used in the film “Private Ryan.”
Justice Steven Breyer said that the entire "NYPD" episode featuring the naked Ross was about sexual awakening. “The whole thing is titillating,” he said.
Waxman argued that it was not about sexual awakening at all, but rather about the complications inherent in certain living situations. When a young boy accidentally walks in on Ross, said Waxman, she was engaged “in the quotidian act of preparing her morning shower.”
Waxman went on to say that there had been many other instances in other programs, including more than a dozen on "NYPD Blue," where the FCC took no action in regard to nudity.
What followed was a surreal exchange. Waxman mentioned that the FCC is weighing complaints about images of bare breasts and buttocks on statues in the opening ceremonies of the last Olympics. He pointed to some of the bas reliefs along the ceiling of the courtroom itself, which depicted similar images of undress.
Justice Ruth Bader Ginsberg offered that, “the appearance of arbitrariness is the issue. One cannot tell what is indecent and what is not, she said.
Justice Elena Kagan agreed that there remained “some amount of uncertainty. Sometimes it’s allowed, sometimes it’s not.”
Ginsberg noted that the films “Schindler’s List” and “Private Ryan” were broadcast complete with lewd language and nudity, but did not get flagged by the FCC.
As for vagueness as arbitrary enforcement, Verrilli conceded the FCC context-based enforcement regime did not provide “perfect clarity” as to what is objectionable — “something less than absolute precision.” But, he added, “the alternative is worse.”Justice Samuel Alito said the FCC's rules apply to such a dwindling part of the media landscape, "why not let this die a natural death"?
Justice Anthony Kennedy asked if in a world of multi-channel cable and satellite television there “is still a value in having a higher standard for broadcast media?” Does maintaining such a standard provide “an important symbol for our society” that would “aspire to a culture that is not vulgar in a very small segment?”
Verrilli argued that there was a value in providing a safe haven for parents where they could be assured their children would not be bombarded with obscene language or images.
Justice Scalia agreed that there was symbolic value in maintaining standards. Just as the court requires a dress code so should the government be “entitled to ask for a certain modicum of decency.”
Ginsberg, though, said that in this day and age children hear “expletives in the common parlance. They’re not going to be shocked by them.”
But Verrilli argued that if the language was “presented as appropriate,” then it would be perceived by children as OK.
The court will render its decision before its recess in June.
Justice Sonia Sotomayor recused herself Tuesday because she previously had sat on the Second Circuit bench.
That said, the issue does not lend itself to ideological predetermination, as conservative justices like Scalia and Clarence Thomas have previously agreed government regulation is necessary in this instance, while Reagan appointee Kennedy has expressed his adamant objection to any trampling of First Amendment rights.
